Windhoek High Court Judge David Munsu reserved his ruling on a bail application by Tamson Hatuikulipi (43), one of the alleged brains behind the Fishrot scandal, to 16 December at 10h00.
In arguments on Friday, Mbanga Siyomunji said an accused remains not guilty until a competent court of law declares him guilty, and withholding bail cannot be used as a form of punishment. He said the case against his client is flimsy at best and cannot sustain a guilty verdict. Siyomunji stated that Tamson has shown to the Court that the money he received from Samherji was for consultancy work he did for them. This, he said, is proven by the consultancy agreements between Tamson and Samherji.
“The applicant has shown that he fulfilled his mandate, and as such was entitled to get paid,” Siyomunji said and continued: “Sight must not be lost that the fishing industry is a multi-billion-dollar industry and as such it would not be unusual for a consultant to be paid millions for deals that would facilitate deals that brings in multi-millions.”
He further said the company at the centre of the saga; Samherji Group of Companies has categorically denied that they were involved in any corrupt schemes and that the payments to Tamson were bogus.
He further said the term used by the State, dummy agreements, is so far from the truth that it cannot hold water. He further said the State failed to show that it has a prima facie case against his client and is now using the refusal of bail as pre-emptive punishment.
He said they will leave the bail amount and the condition to be attached in the hands of the court.
Ezekiel Iipinge, on behalf of the State, argued that Tamson did not produce any new evidence to show that there is no prima facie case against him on the looting of Fishcor funds and therefore any evidence he gave in this bail application does not impact on the basis on which bail should be denied. Iipinge was adamant that public interest still dictates that bail should be denied and the applicant remains in custody pending the finalisation of his trial.
The time spent in custody – no matter the period – does not automatically entitle an applicant to bail, especially in circumstances where the applicant and his co-accused are themselves to blame for delaying the trial by bringing unnecessary applications. “In any event, the length of pre-trial incarceration does not relate neither change the decision of the magistrate to deny the applicant bail on the grounds of Section 61 which deals with public interest and the interest of justice, Iipinge stressed.
He went on to say that the constitutional right to liberty is not absolute and he is lawfully detained. According to him, the State has proven a strong case against the applicant on offences which attract lengthy imprisonment sentences.
This, he said, greatly diminishes any potential prejudice on the applicant which may arise from his pre-trial incarceration.
He submitted that the applicant failed to adduce any new evidence and has thus failed to meet the requirements for a bail application on new facts for which reason alone the application should be dismissed.
If the court finds there were new facts established, Iipinge argued, such new facts do not impact the reasons why bail was initially denied. Hence it is not open for this court to grant bail in the circumstances.
-rrouth@nepc.com.na